IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Johns v. Friesen,

 

2011 BCSC 1694

Date: 20111212

Docket: S18843

Registry: Chilliwack

Between:

Bradley James Johns

Plaintiff

And

Allen Grant Friesen and Honk.Ca Automotive Ltd.

Defendants

Before: The Honourable Madam Justice Kloegman

Reasons for Judgment

Counsel for the Plaintiff:

M.J. Thornton

Counsel for Defendants:

A.R. Ayliffe

Place and Date of Trial/Hearing:

Chilliwack, B.C.

October 7, 2011

Place and Date of Judgment:

Chilliwack, B.C.

December 12, 2011

 

[1]             On December 19, 2007, the defendants’ 2008 GMC Sierra pickup truck (the “Truck”) skidded out of control and struck the center median of Highway 5 northbound outside of Merritt. It then rode up on its side and righted itself, facing the opposite direction on the highway. No other vehicle was involved in the accident. The plaintiff, who was a passenger in the Truck, suffered injuries to his left shoulder, requiring surgery, and other injuries to his neck and right hand. The defendant Friesen, who was driving the Truck, hit his head on the window.

[2]             The parties have agreed on the quantum of damages suffered by the plaintiff, but the defendants dispute liability for the accident.

[3]             The plaintiff pleads that the defendant Friesen was negligent and in particular, drove with excessive speed, given the ice on the highway that the plaintiff says that the defendant Friesen knew or ought to have known was present.

[4]             The defendants plead that the defendant Friesen was not negligent, or alternatively, that the accident was inevitable.

[5]             The plaintiff, defendant Friesen, and Constable Rioux (who attended the accident site) all testified and appeared credible. They did not exhibit much disagreement as to what they had observed.

[6]             This is not a case of res ipsa loquitor. The Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, instructs us that the applicability of the doctrine of res ipsa loquitor should be treated as having expired. In any event, the use of this doctrine was always restricted to cases where the reason for the accident was unknown, and the circumstantial evidence provided no other reasonable explanation.

[7]             In the case at bar, there is both direct and circumstantial evidence establishing the cause of the accident. Both occupants of the Truck survived the accident and were able to testify about the exact moment that the Truck skidded out of control. Constable Rioux was able to corroborate the cause of the skid as being due to black ice.

[8]             The plaintiff bears the burden of showing on a balance of probabilities that the defendant Friesen breached the standard of care of a prudent driver in the circumstances and that this breach caused the plaintiff’s injuries.

Background

[9]             The plaintiff and defendant Friesen were staying in a travel trailer owned by the defendant Friesen’s son on the south-west side of Merritt. They were workmates on a construction site north-east of Merritt. The day before the accident, December 18, they had driven together in the Truck from Chilliwack to the construction site without mishap. The plaintiff testified that the side roads were a little bit icy but he did not recall if there was ice at the construction site. The defendant Friesen testified that the roads were bare and the traction was good, although there was snow on the sides of the road.

[10]         At the end of the day on the 18th, they travelled from the construction site to the trailer. The defendant Friesen testified that the roads were still in good condition.

[11]         That evening, they went to the plaintiff’s mother’s place in Merritt for dinner. The plaintiff testified that he did not notice slipping or difficulty with traction or any snow or rain, but he remembered frost on the Truck later in the evening. The defendant Friesen testified that the weather was cool but clear, and the roads were good.

[12]         The plaintiff and defendant Friesen retired to bed on December 18 at about 10:30 p.m. and were woken at 6:00 o’clock the next morning by a telephone call from a co-worker whose truck had broken down on Highway 5 between Merritt and Kamloops. The co-worker made no mention of the weather or road conditions. He asked the defendant Friesen to pick him up and take him to work.

[13]         The plaintiff and defendant Friesen left the trailer about 10 minutes later. The plaintiff testified that they were in a hurry, and left without showering or eating breakfast. The defendant Friesen testified that he was not in a rush because he knew they had plenty of time to pick up their co-worker and still get to the construction site by 8:00 o’clock a.m. in order to start work on time. On cross-examination, the plaintiff agreed that there was adequate time to do this and still drive at a reasonable rate of speed.

[14]         The plaintiff said when they got in the Truck that morning it was dark and cold, with the temperature hovering about zero. There was snow here and there. The Truck had been running for 5 or 10 minutes so there was no ice on the windows, but there was frost on the body. It was not slippery outside.

[15]         The defendant Friesen testified that he did not know for sure what the temperature was, but agreed it was probably about zero. Constable Rioux assumed the temperature was below freezing because of the black ice.

The Accident

[16]         The parties drove through Merritt to Highway 97C and took the Highway 5A overpass to the Highway 5 connection travelling north. It was not snowing, and the plaintiff could not recall any slipping, or feeling uncomfortable with the defendant Friesen’s driving. The plaintiff recalled picking up speed to get onto Highway 5. They caught up to another vehicle before it exited the highway. He glanced at the speedometer and recalled it being 85 to 90 kilometers per hour. The posted speed limit was 110 kilometers per hour. The plaintiff could not recall if the defendant Friesen accelerated after the plaintiff noted the speedometer.

[17]         The plaintiff said from the point where the other vehicle exited, the road curved right and under an overpass. That is where the Truck went out of control and hit the median.

[18]         The defendant Friesen testified that the traction on the road was good, right through to the overpass on Highway 5. The roads were wet-looking, but bare. The temperature in the Truck was +1 degree Centigrade. The on-ramp to Highway 5 had good traction and it looked dry.

[19]         The defendant Friesen said there was this “real shiny spot” about 50 feet away just as they went under the overpass. He had started to accelerate, then all of a sudden he saw the shiny spot and made the mistake of hitting the brake to slow down, causing the Truck to spin out of control.

[20]         At trial, the defendant Friesen insisted that he had just started to give the Truck some throttle when he saw the shiny patch. He said he told Constable Rioux he had “just started to accelerate,” when he saw the shiny patch. Constable Rioux had noted that he was told by both the defendant Friesen and the plaintiff that it was when the driver “started to accelerate the … back end took off and they lost control.”

[21]         In his examination in chief, the defendant Friesen estimated that they were travelling about 85 kilometers per hour at the time he hit the ice. In his examination for discovery, he had estimated 90 kilometers per hour.

[22]         Constable Rioux refreshed his memory of the accident site from notes and a report that he made within 20 minutes of attending at the scene. He said there was some white ice on Highway 5 travelling south, but he did not drive in the northerly direction from which the Truck had travelled. He said the defendant Friesen had hit a patch of black ice that you could not tell was there unless you felt it. He did not notice the ice until he got out of his car; then he noticed it was slippery underfoot. He could not recall any slippery sections or loss of traction on his trip to the accident site.

[23]         Constable Rioux noted in his report that a contributing factor to the accident was “driving too fast for conditions.” However, he did not charge the defendant Friesen and he admitted on cross-examination that the bend in the roadway immediately before the overpass could easily be taken going at 110 kilometers per hour, depending on the road conditions.

[24]         The Truck was in excellent condition. It was only two weeks old and the all-season tire treads were one inch deep. The Truck was loaded with a large, full fuel tank weighing about 250 pounds and other equipment weighing about 50 pounds.

[25]         The defendant Friesen was in excellent health.

Negligence

[26]         The plaintiff submits that the defendant Friesen was negligent because he was driving too fast for the significant possibility of ice on the road; and furthermore he braked when an experienced driver such as himself should have known this would compound the problem.

[27]         The plaintiff relies on the following facts to establish excessive speed in the circumstances:

1)    The defendant Friesen was in a hurry to pick up their co-worker and get back to the construction site;

2)    The defendant Friesen picked up speed on entering Highway 5 and caught up to another vehicle;

3)    The defendant Friesen was travelling 85-90 kilometers per hour at this point;

4)    The defendant Friesen accelerated as he proceeded under the overpass;

5)    The defendant Friesen did not recall the snow and ice shown in Constable Rioux’s photographs;

6)    No other vehicles going north on Highway 5 appeared to have traction problems; and

7)    Constable Rioux stated in his report that the defendant Friesen was driving too fast for conditions.

[28]         In my opinion, some of the above facts were not borne out by the evidence.

[29]         Firstly, I do not find that the defendant Friesen was in a hurry. The plaintiff admitted that they had ample time to pick up their co-worker. They had left the trailer one hour earlier than usual and knew the route they were travelling. The defendant Friesen denied that he felt rushed.

[30]         Secondly, the best evidence of speed is that the defendant Friesen had slowed down for another vehicle to exit the Highway and then only started to accelerate before he hit the ice. I find on a balance of probabilities that the Truck was probably travelling at least 20 kilometers below the posted speed limit at the time of the accident.

[31]         Thirdly, I must be careful in interpreting the white patches in the photographs taken by Constable Rioux as ice and snow. There was no evidence before me on the type of camera, or lens, or exposure, or light used to take the photographs. Constable Rioux admitted at one point that there was some over-exposure lending a whiteness to some of the photos that appeared to be snow but was probably just light.

[32]         Fourthly, the lack of other vehicles slipping on the same patch of ice is not conclusive. The plaintiff relies on a statement by Finch J.A. in Savinkoff v. Seggewiss, 77 B.C.A.C. 98, regarding the strength of evidence of other motorists successfully negotiating a road hazard. However, Savinkoff was not a case of invisible black ice, rather it concerned a very visible prior accident site that the defendant in Savinkoff crashed into. More importantly, the defendant in Savinkoff admitted to being aware of slippery conditions on the road.

[33]         In the case before me, there was no evidence of slippery conditions existing along the route travelled by the parties that morning, or the evening or day before. Both counsel covered this carefully with all three witnesses, and the first indication of slippery road surface was at the accident site.

[34]         Finally, I can give only little weight to Constable Rioux’s opinion that the defendant Friesen’s speed was excessive in the circumstances. He did not charge the defendant Friesen with an infraction and there was no evidence before me to establish at what lower speed, if any, the Truck could have negotiated the ice patch without losing traction.

[35]         In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36]         The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37]         In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

“Kloegman J.”